Kentucky Law Survey: Criminal Rules

In May 1978 the Kentucky Supreme Court set up a Criminal Rules Revision Committee (Advisory Committee) to study Kentucky's Rules of Criminal Procedure. The purpose of the Advisory Committee was to make recommendations to the Judicial Council. The committee met sixteen times between July 1978 and July 1980, and at the conclusion of its study, submitted a comprehensive revision of the rules of criminal procedure to the judicial council. These proposed revisions went beyond mere amendment of the existing rules. The Advisory Committee drew heavily from the Federal Rules of Criminal Procedure, and ultimately proposed extensive changes in plea bargaining, grand jury practice, discovery and sentencing. On July 3, 1980 the Judicial Council submitted the proposed rules to the Kentucky Supreme Court. The Court received written comments and held a public hearing on December 9, 1980. At that time, Justice Robert Stephens was appointed to chair a committee of the Court to consider the proposed rules in light of written and oral comments received by the Court—many of which were addressed to a proposal to do away with jury sentencing. On June 12, 1981 the Supreme Court entered an order amending the criminal rules, and the amendments went into effect on September 1, 1981. The order represented the Court's modification of the proposals of the Advisory Committee. Some proposals were adopted without change; others were modified by the Court. Many committee proposals-including the controversial proposal for judge sentencing-were rejected, and the Court originated a number of changes in the 1981 amendments itself. The Advisory Committee had included a proposed "Official Commentary" with a number of rules, but the Court neither adopted any of the proposed commentary nor generated its own commentary. This article addresses the major changes in criminal procedure effected by the 1981 amendments. Reference is made where appropriate to the Advisory Committee proposals and its proposed "Official Commentary." The commentary provides insight into the intent of the drafters of rules adopted by the Court without change. No attempt is made in this article to discuss the committee proposals which were not adopted.